law

GIULIANA SCOGNAMIGLIO

Knowledge and understanding:
The objective of the course is to provide students with an adequate understanding of the fundamental institutions of business and company law. It also aims to stimulate students’ interest in empirical analysis and in the economic aspects of the legal institutions covered.

Applying knowledge and understanding:
By the end of the course, students are expected to be able to correctly identify the legal institutions studied; understand the interrelations between general civil law and commercial law; and explain the main interpretative issues characterizing the living law of businesses and companies. The course particularly aims to introduce students to case-solving techniques and the legal reasoning behind the adopted solutions.

Making judgments:
By the conclusion of the course, students are expected to have developed a sufficiently independent capacity to analyze the legal institutions covered and the related interpretative and practical issues.

Communication skills:
At the end of the course, students should be able to clearly present the concepts of commercial law they have learned, independently establishing logical and legal connections within the subject, using appropriate legal terminology.

Learning skills:
By the end of the course, students are expected to be able to continue their study of the core institutions of business and company law, thus preparing to undertake further study in Commercial Law II on solid foundations.

A prerequisite for the study of commercial law (and for passing the related exam) is a good knowledge of the institutions of private law. It is however mandatory to pass the related exam before tackling the exam in commercial law. In particular, a good knowledge of the discipline of property and possession, as well as of the matter contained in Book IV of the Civil Code (obligations and contracts in general; contractual and non-contractual obligations; contractual liability; torts) and in book VI of the same code (enforcement of rights; preservation of the obligations' guarantee; credit guarantees) is required for the study of commercial law. At the same time, passing the exam of Commercial Law is the prerequisite for successfully tackling the study of the following disciplines: Banking Law, Competition and Intellectual Property Law, Insolvency and Restructuring Law, Financial Markets and Financial Intermediaries Law, International and European Commercial Law.
Anyone wishing to face the study of commercial law in the best possible way will also have to master the basics of economics, so it is recommended to take the relevant exam before tackling that of commercial law.

The Business Law I course has the following core content:

- A brief historical profile of commercial law. Market and enterprise phenomena.
- The notion of enterprise in economics and law. The definition of the entrepreneur in the civil code. The notion of enterprise in European law.

- Diversification among enterprises in terms of the object of the activity: agricultural, commercial, craft enterprises. The capacity to conduct business.
- The size profile: the small entrepreneur, SMEs, the 'large' enterprise.
- The start and (voluntary) termination of the enterprise.
- Capacity to conduct business.
- The imputation of the activity and business risk. The criterion of spending the name; the theory of the hidden entrepreneur.
- Representation in the exercise of the enterprise. The figures of the instigator, the attorney, the salesperson.
- The company and the company branch. The regulation of the circulation of the company (and the company branch): debts, credits, contracts relating to the transferred company; the alienator's obligation to refrain from competition; the advertising regime.
- The principles governing the legal publicity of the company and its effects. The regulation of the commercial register. The registration and cancellation procedure; the role of the registry judge. The effects of registration and cancellation.
- The books of account (compulsory and non-compulsory) and the general rules on bookkeeping. The balance sheet: reference to the discipline of the s.p.a.
- The exercise of the undertaking by means of the constitution of a patrimony endowed with autonomy: in particular, companies. Asset autonomy and legal personality.
- Concept of company and company contract: Article 2247 of the Civil Code and the constitution of the company on the basis of acts or facts other than contract. The de facto company.
- The principle of typicality of companies: personalistic and capitalistic types. Mention of European company forms: European Company (SE) and European Cooperative Society (SCE).
- The purposes that can be pursued through the corporate instrument (the causal profile): the profit-making purpose; the mutualistic purpose; the consortium purpose. Social enterprises. Benefit societies. The so-called corporate social responsibility.
- The regulation of partnerships (simple partnership, general partnership, limited partnership): articles of incorporation and their amendments; legal publicity and irregular companies; the company structure and its changes (by withdrawal, death, exclusion of an individual partner); the financial structure: contributions and asset formation; administration and representation; directors' responsibilities; management control; partners' rights and powers.
- The company limited by shares and limited partnerships. Memorandum and articles of association. Shareholders' agreements: notion, content, discipline, publicity
- Registration of the company in the commercial register and its effects. The nullity of the registered public limited company.
- The corporate structure. - The different degrees of openness of the company structure to the market: closed companies and open companies (diffuse, listed). The disciplinary 'step' between one and the other. The listed company. Companies with several shareholders and single-member companies.
- Companies with public participation.
- Changes in the corporate structure: withdrawal of shareholders; the redemption of shares by the company; the confiscation of shares as a sanction and as a preventive measure.
- Capital profiles and financial provision. Capital, assets, net worth. Contributions; Subscription and execution of the contribution. Breach of the contribution obligation. Asset segregation: earmarked assets and earmarked financing.
- Accounting information and the financial statements. Structure, functions and content of financial statements. Code provisions and IAS/IFRS international accounting standards. The approval procedure. Effects of the approval of the financial statements. Defects in the financial statements. The control of the financial statements: from the board of auditors to the external auditor.
- Company shares. The principle of equality of nominal value. Mention of shares without nominal value. The prohibition of 'below par' issues.
- Shares as Debt Securities (Reference to Part II)
- The property and administrative rights attached to shares (voting rights, right to remuneration of capital, right of withdrawal, etc.).
- Shares with 'other' rights: the categories of shares. Special meetings.
- Transactions on the company's own shares.
- The circulation of shares and the entitlement to exercise shareholder rights.
- Dematerialized shares and their circulation.
- Legal, statutory and parasocial limits to the circulation of company shareholdings (approval clauses, pre-emption clauses, blocking syndicates, etc.).
- Participatory financial instruments.
- The debenture loan in its various forms. Legal position and organization of the bondholders. Powers and duties of the common representative. Convertible bonds.
- Corporate bodies. The method of collegiality and its rules.
- The shareholders' meeting. The competences. The majority principle. Quorums. The invalidity (nullity, voidability, ineffectiveness) of resolutions. Challenges and remedies (invalidation, compensation) in favour of the non-assenting shareholder. Hypotheses of shareholder protection through exit.
- The function of administration and that of control. The regulation of the company's power of representation.
- The different systems of administration and control (traditional, monistic, dualistic).
- Powers and duties of the persons in charge of administration and control functions. Appointment and termination of office. Remuneration. The discipline of revocation.
- The liability of the persons in charge of administration and control functions for damage caused to the company, to individual shareholders or third parties, and to the company's assets. Actions to enforce it.
- Powers and duties of the persons in charge of administration and control in the event of the company's crisis or insolvency.
- Judicial control over the administration.
- The limited liability company (s.r.l.) in its various forms. The simplified limited liability company. The start-up-innovative limited liability company. The s.r.l. SME, innovative and non-innovative.
- The financial structure. The s.r.l. with 1 Euro capital. Types of contributions by shareholders. Subscription and execution of the contribution; non-fulfilment of the contribution obligation. Shareholder loans.
- Capital transactions. Transactions on own shares.
- The s.r.l,’s share. The rights attached to the share. Shares with different rights. The transfer of shares in limited liability companies and their access to the financial market. The crowdfunding.
- Debt securities in the s.r.l.
- The shareholder structure and its modifications. Withdrawal and exclusion of the shareholder.
- The powers of shareholders. The liability of the shareholder influencing the management. Shareholder decisions and shareholders' resolutions in the limited liability company.
- The corporate bodies and the distribution of the functions of administration and control.
- The controlling body (monocratic or collegial). The individual shareholder's right to information and control.
- Liability actions against directors. The activation of judicial control over the administration. Accounting and the control thereof.
- Companies with a mutual purpose: cooperative societies; consortium companies (subject to examination of the consortium contract).
- Dissolution, (voluntary) liquidation and extinction of partnerships and corporations. The causes and effects of a company's dissolution. Appointment and powers of liquidators. The stages of liquidation proceedings until the company's extinction. Any contingent assets and liabilities after the dissolution.

 G.F. Campobasso (with an update by M. Campobasso), Diritto commerciale, publisher Utet, vols. 1 and 2;
 M. Cian and others, Diritto commerciale, publisher Giappichelli, vols. 1 and 3;
 G. Ferri sr. (with updates by G.B. Ferri and C. Angelici), Manuale di diritto commerciale, 17th edition, publisher UTET, 2023;
 P.G. Jaeger - F. Denozza - A. Toffoletto, Appunti di diritto commerciale. Impresa e società, 9th edition, publisher Giuffrè, 2023;
 G. Presti and M. Rescigno, Corso di diritto commerciale, publisher Zanichelli, 2023;
 G. F. Campobasso (with an update by M. Campobasso), Manuale di diritto commerciale, publisher Utet (in a single volume);
 M. Cian and Others, Diritto commerciale, publisher Giappichelli (in a single volume).

The above-mentioned textbooks (which the student may take care to obtain the most recent edition on the market) are obviously to be considered as alternatives to each other. However, in order to achieve a good level of preparation, it is advisable, particularly for those who cannot or do not wish to attend lectures, to consult two or more manuals at the same time.

Case law will be dealt with in the classroom and much attention will be paid to current events. It is therefore strongly recommended to attend the lectures assiduously. Intermittent attendance has no teaching effect.

The teacher will issue slides and various teaching materials in the course of the semester. In any case, it is indispensable, both in classroom and individual study, to constantly consult the regulatory sources (civil code and related laws), in the version in force

Attendance on regular basis, although not mandatory, is recommended in order to achieve the expected learning outcomes.

At the end of the course the preparation of the students will be verified on the basis of an oral or written test.
To pass the exam, it is necessary to achieve a good knowledge of the core subjects of intellectual property rights and competition law, by studying one of the books listed in the “shorter” version of the program.

To obtain higher or even top grading, students are required to achieve a deep knowledge of the course’s core subjects (by studying one of the books listed in the “wider” version of the program), to be able to connect, in a consistent way, the different issues examined in the course, and to discuss, in a consistent and convincing way, controversial cases.